Commentary on Article 278. Substandard Construction of the Criminal Code of the Republic of Kazakhstan

1. The commissioning and (or) acceptance for operation of buildings and structures, motor roads, tunnels, power plants, residential buildings or other construction facilities that have been constructed defectively, remain unfinished, or do not comply with the terms of the contract and design documentation, as well as their poor-quality repair, by heads of construction organizations, work supervisors and officials exercising control over the quality of construction, if this has negligently resulted in the infliction of grievous or moderate bodily harm to a person, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

2. The same acts, if they have negligently resulted in the death of a person or other grave consequences, —

shall be punishable by imprisonment for a period of up to six years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

3. Acts provided for in Part One of this Article, if they have negligently resulted in the death of two or more persons, —

shall be punishable by imprisonment for a period of three to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

The public danger of the crime lies in the fact that the commissioning and (or) acceptance for operation of construction facilities that have been constructed defectively, remain unfinished, or do not comply with the terms of the contract and design documentation, as well as their poor-quality repair, are capable of and do lead to their destruction and thereby cause human casualties, bodily injury, damage to the environment, and substantial material losses.

The object of the crime is public safety in the sphere of the functioning and operation of construction facilities.

The additional object is the life and health of people, the environment, historical and cultural heritage sites, and property.

The subject matter of the crime comprises buildings and structures, motor roads, tunnels, power plants, residential buildings or other construction facilities.

A building is an artificially constructed structure consisting of load-bearing and enclosing structures that form an enclosed above-ground volume, which, depending on its functional purpose, is used for people to live or stay in, to carry out production processes, as well as to accommodate and store material assets. A building may have an underground part.

A structure is an artificially created volumetric, planar or linear object (above-ground, overwater and (or) underground, underwater) having natural or artificial spatial boundaries and intended for carrying out production processes, accommodating and storing material assets, or for the temporary presence (movement) of people and cargo, as well as for the placement (laying, installation) of equipment or communications. A structure may also serve an artistic and aesthetic, decorative and applied, or memorial purpose.

Transport infrastructure is an aggregate of overland (motor and (or) railway) roads, water (sea and (or) river) communication routes, together with a complex of bridge, tunnel and other transport structures, road interchanges and overpasses, traffic signal control devices, communications, facilities providing engineering support for transport operations, servicing vehicles, transported cargo and passengers, ensuring the functional activities of production and service personnel, warehouse premises and territories, sanitary protection and security zones, as well as lands legally assigned to the aforementioned routes and facilities, together with real estate objects located thereon.

A motor road is a complex of engineering structures and devices (roadbed, carriageway, bridges, various service buildings, roadside service enterprises, etc.) intended to ensure the safe movement of non-rail vehicles and pedestrians under all weather conditions.

A tunnel is an underground structure serving transportation purposes.

A power plant is an electric power station, an aggregate of installations, equipment and apparatus used directly for the generation of electrical energy, as well as the structures and buildings necessary for this purpose and located within a designated territory.

A residential building (residential structure) is a building consisting mainly of residential premises, as well as non-residential premises and other parts constituting common property (subparagraph 39) of Article 2 of the Law of the Republic of Kazakhstan dated April 16, 1997, “On Housing Relations”).

Other construction facilities include residential and utility structures located on garden and summer cottage plots, auxiliary-purpose structures, consumer-purpose structures (summer cottages, garden houses, garages), etc.

In accordance with subparagraph 31) of Article 1 of the Law of the Republic of Kazakhstan dated July 16, 2001, “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”: “Construction activity (construction) is an activity aimed at creating fixed assets for production and non-production purposes through the erection of new and (or) modification (expansion, modernization, technical re-equipment, reconstruction, restoration, major repair) of existing facilities (buildings, structures and their complexes, communications), installation (dismantling) of technological and engineering equipment associated therewith, production (manufacture) of construction materials, products and structures, as well as carrying out work on the conservation of construction of unfinished facilities and post-utilization of facilities that have exhausted their service life.”

The objective side of the crime is expressed in the commissioning and (or) acceptance for operation of buildings and structures, motor roads, tunnels, power plants, residential buildings or other construction facilities that have been constructed defectively, remain unfinished, or do not comply with the terms of the contract and design documentation, as well as in their poor-quality repair.

Commissioning and (or) acceptance for operation is the procedure whereby a completed (reconstructed, etc.) facility is handed over by the contractor and accepted by specially authorized persons in a strictly established manner.

Acceptance of a facility for operation includes verification of the documentation, the actual condition of the facility, its commissioning (launch into the technological cycle), commencement of operation and use. For example, the commissioning of enterprises, structures, buildings and other facilities that are not equipped with modern technologies and equipment and do not meet safety requirements is prohibited.

Construction facilities of poor quality are recognized as facilities of inferior quality, containing defects that make them entirely unsuitable for their intended purpose or impossible to use without substantial reworking, and which, when properly used, have failed to withstand the warranty periods of operation established for them.

Unfinished construction means a construction facility that has not been accepted by the customer in the established manner for commissioning and is not being used for its intended purpose (residential accommodation, provision of services, production of goods, generation of profit and other types of operation). Facilities that do not comply with the terms of the contract or design documentation may include facilities constructed with deviations from documentation duly approved in accordance with the procedure established by law, or with amendments made thereto without the permission of the approving authority.

A project is an intention of individuals and legal entities or the State to ensure the necessary conditions for human habitation and livelihood, presented in the form of architectural, urban planning and construction documentation (drawings, graphic and textual materials, engineering and cost estimates). Design documentation includes: landscaping projects for a territory, its external decoration, and the placement and installation (erection) of works of monumental or decorative art; an urban planning project; a construction project; an architectural project.

Repair is a set of technical measures aimed at maintaining or restoring the original operational qualities of the repair facility as a whole, as well as its individual structures. In the event of poor-quality repairs, construction facilities, due to defects, cannot be used for their intended purpose or can only be used partially.

An essential element of the crime is the causal relationship between substandard construction and the occurrence of the consequences. An expert examination must be conducted in cases of this category.

If the commissioning and (or) acceptance for operation of buildings and structures, motor roads, tunnels, power plants, residential buildings or other construction facilities that have been constructed defectively, remain unfinished, or do not comply with the terms of the contract and design documentation, as well as their poor-quality repair, have not resulted in the consequences specified in the disposition of the Article, such acts may entail disciplinary, administrative or civil liability.

By its structure, the corpus delicti is a material one. The crime shall be deemed completed from the moment grievous or moderate bodily harm is negligently inflicted on a person.

The subjective side of the crime is characterized by negligent and intentional forms of guilt. The commissioning and (or) acceptance for operation of buildings and structures, motor roads, tunnels, power plants, residential buildings or other construction facilities that have been constructed defectively, remain unfinished, or do not comply with the terms of the contract and design documentation, as well as their poor-quality repair, may be carried out consciously (intentionally) or unconsciously. Where a violation is committed knowingly, increased criminal liability should apply. The perpetrator's attitude towards the consequences is characterized by negligence.

The subject of the crime is special. Such subjects may include heads of construction organizations (for example, the head or chief engineer of a construction organization), work supervisors and officials exercising control over the quality of construction (for example, members of an acceptance commission, the chief engineer, representatives of architectural and construction control). Liability for this offense arises at the age of 16.

The qualifying features include negligently causing the death of a person or other grave consequences (Part 2 of Article 278 of the Criminal Code).

Negligently causing the death of a person is expressed in depriving a victim of life in the course of the perpetrator's professional activities as a result of commissioning and (or) accepting for operation buildings and structures, motor roads, tunnels, power plants, residential buildings or other construction facilities that have been constructed defectively, remain unfinished, or do not comply with the terms of the contract and design documentation, as well as their poor-quality repair.

Other grave consequences should be understood to include mass illness, infection, radiation exposure or poisoning of people; deterioration in the health of the population and the condition of the environment; the occurrence of a man-made or environmental disaster, or an emergency environmental situation; causing large or especially large-scale damage; creating a threat to State security, a catastrophe or an accident; and other consequences indicating the severity of the harm caused.

The infliction of death through negligence upon two or more persons constitutes a particularly qualifying feature (Part 3 of Article 278 of the Criminal Code).

The act provided for in Part 1 of Article 278 of the Criminal Code belongs to the category of minor-gravity crimes.

The acts provided for in Parts 2 and 3 of Article 278 of the Criminal Code belong to the category of medium-gravity crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Act Order Decision Resolution Lawyer Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Addresses